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Help with Draft Defence PPS/Bwlegal (lowlife) 2014, SchoolRunMum ~ Coupon~mad?
Phoenixfreespiri...
post Mon, 15 Oct 2018 - 19:27
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Hi I am hoping it is ok to ask
QUOTE
SchoolRunMum
for help with my defence as she was wonderfully kind and helping me on MSE as Coupon-mad and asked for my draft defence so I am hoping she will see this!
I know it is long! Please bear with me this is my first time posting on here
QUOTE
PCN issued in residential parking with no proof of contract which was the only point of access for the disabled entrance to the library, which had to be used because the disabled parking space was taken in 2014.

Defence
In the County Court
Case no .......
Claimant Premier Parking Solutions
Defendant .......
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at St. James House, Teignmouth 22/10/2014.
2. The Defendant denies liability for the entirety of the claim for the following reasons.
3. The claim was issued prematurely, during pre-action exchange of information and with disregard for the GDPR by ignoring a letter that was clearly a Subject Access Request, given the clear request for information and data.
4. The claimant’s template letters are the cause of some confusion as they all address the defendant as the driver, whilst stating that the defendant is being pursued as the keeper; yet they refuse to reply on Schedule 4 of the Protections of Freedom Act 2012. Therefore ~:
4.1. The identity of the driver of the vehicle on the date in question has not been ascertained. The Claimant is put to strict proof.
4.2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"), which they have refused to reply on.
4.3. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.4. There was a relevant obligation either by way of a breach of contract, trespass or other tort; and
4.5. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory requirements.
4.6. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
5 No indication is given as to the Claimants contractual authority to operate in situ, as required by the Claimants Trade Association's Code of Practice B1.1 the material details of this contract are not addressed in the particulars and the claimant has refused to give proof that any such contracts exist when asked for evidence..
6 As is required by Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant has not provided proof of the Claimants contractual authority to operate in the car park in question It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions. No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
6.1. Premier Parking Solutions are not the lawful occupier of the land. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bring a legal action on behalf of any third party who may be entitled to pursue a claim.
6.2. The Claimant is not the landowner and has provided no proof to be an agent acting on behalf of the landowner as they have refused to demonstrate their legal standing to form a contract.
6.3. The Claimant has suffered no loss whatsoever as a result of a vehicle parking at the location in question.
6. 4.There was no provision at the location to buy either a pay and display ticket or permit.
6.5. The Defendant has not seen the original PCN and the Claimant has failed to provide a copy despite having been asked to do so.
7. There are significant issues involving statutory disability rights here, that the ticketing employee certainly knew about on the day. Therefore (to quote the Equality Act 2010, the ''EA'') the Claimant 'knew or should have known' the following facts: the passenger in the vehicle that day was disabled, and that she had 'protected characteristics' as defined under the meaning set out in the EA
7.1. The passenger in the car (the Defendant’s recently diseased Mother) was visibly very disabled. Whoever issued the PCN must have watched her struggle to walk and carry two large bags of books, and that employee (or perhaps a self-ticketer in pursuit of a 'bounty' from PPS) must have then run straight out from hiding, to put a ticket on the car during the time it took to return the books and find new ones.
The passenger, who was also deaf, had only just come out of hospital after breaking her hip falling out of a car, was still undergoing occupational and physiotherapy and was very anxious walking outside and unable to walk unaided. The passenger was classed as disabled despite the defendant not having had time to apply for a blue badge as the vehicle had only just been purchased and the passenger had only just been released from hospital.
7.2. The library where this incident is alleged to have happened, only had a paltry - and woefully inadequate - single disabled parking space, which the Defendant understands was full, so the car would have been parked as near as possible due to the Defendant’s Mother's poor mobility and the 24 large print books that needed returning.
7.3. Due to the significant changes in mobility and consequent demands on the whole family because of the number of arrangements necessary to enable both the Defendant’s parent’s to be safely discharged home from hospital; the vehicle was only available to be used to transport the passenger at that time; there was no possibility of returning later.
7.4. The location is the only thoroughfare and point of access for the disabled entrance to the Public Library which was necessary for the disabled passenger to use on the day in question.
7.5. The Defendant believes the Claimant is in breach of article 30 0f the UK ratified United Nations Convention on the Rights of People with Disabilities (CRPD) of 2009. The Convention is the basis for creating inclusionary societies in which people with disabilities enjoy the same rights and freedoms as everyone else, article 30 states –
Participation in cultural life, recreation, leisure and sport
1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
a) Enjoy access to cultural materials in accessible formats;
b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;
c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.
7.6. The alleged charge arose because the defendant’s deaf and disabled mother needed to access the library. The Claimant has been advised of these facts and refused acknowledge their reprehensible conduct.
8 The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her defence, inadequate.
8.2. At the time of the material events the signage was deficient in number, distribution and wording to reasonably convey a contractual obligation;
8.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organization to which the Claimant was a signatory.
8.4. There are no signs at the entrance at all.
8.5. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
8.6. As this incident took place in 2014 it is in breach of Terms in Consumer Contracts Regulations 1999.
8.7. Absent the elements of a contract, there can be no breach of contract
8.8. Section B.2.1, B.2.2 of the IPC Code of Practice gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
8.9. Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
8.10. Signs must conform to the requirements as set out in a schedule 1 to the Code
8.11. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contract and which met the specifications above.
8.12. Such a contract is not applicable to the keeper.
9. Section B.1.1 of the IPC Code of Practice outlines to operators:
9.1. If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
10. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
10.1. The make up and amount of Claimant’s additional charges change from letter to letter.
10.2. The Defendant believes that the claim has been artificially inflated and that the claimant has added unrecoverable sums to the original charge, including £50 for Legal Representatives costs which is not permitted for the small claims track under CPR 27.14. In any case the Defendant disputes the Claimant has incurred £50 Legal Representatives Costs pursuing an alleged £100 debt.
10.3. The defendant disputes that the claimant has also incurred further supposed additional contractual costs of £60 pursuant to PCN Terms and Conditions.
10.4. The claimant is put on strict proof to evidence the alleged total by means of hourly rate breakdown and receipted invoice for payment.
10.5. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
11. The Claim Form issued by BW Legal on the 17th September has not been correctly filed as it was not signed by a legal entity. It does not have a valid signature. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. Its literally just computer printed BW Legal Services Limited (Claimants Legal Representative). There's no signature.
12. The Claimant is believed to be a serial litigant, with over 1,000 similar claims identified by HM Courts Service, which is clearly against the public interest. It is the Defendants belief that this claim is yet another of the Claimants template claims and will proceed with no specific evidence or facts with which to substantiate it which demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
13. The Defendant cannot prepare a full and complete Defence in response to an inadequate, confusing and poorly drafted statement of case from the Claimant. The Defendant reserves the right to add to or amend the Defence should the Claimant (a) advance a different case via his witness evidence and/or (b) serve Amended Particulars of Claim. Any additional court fees or other litigation costs - of and occasioned by the amendment - should be borne by the Claimant.
14. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).
14.1. At the time of this incident, both the Defendant’s parents had just been discharged from hospital with life changing health conditions - and were in and out of hospital - so whilst the Defendant was appalled to receive PPS' demand for an unfair 'parking charge' four years ago; he/she was too overwhelmed by having to take on responsibility for both parents' care and living arrangements to respond to this distressing 'predatory scam' incident at the time.

14.2. Receiving a Letter of Claim four years later, could not have come at a worse time as the Defendant’s Mother has very recently passed away. It is extremely distressing and heartbreaking to have to deal with this now, whilst still mourning her sudden, unexpected death under tragic circumstances.
14.3. This incident and the Claimant’s appalling attitude and contemptible behaviour has caused and continues to cause significant distress and anxiety to the whole family, and the Defendant in particular as the registered keeper of that car on the material date; who has suffered severe panic attacks, lost sleep and exhaustion at a time when also taking on responsibility for all the family affairs following the Defendant’s father’s Dementia diagnosis; and now finding it is not yet over and PPS are suing over their own discriminatory conduct in the hope of profiting from it.
14.4. Under CPR Rule 27.14(2)(g): ''costs can be awarded where a party behaves unreasonably''.
Further, under paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''
14.5. The Defendant would like to draw attention to a landmark 2017 judgment at the Leeds County Court, 3SP00071 - Blamires v LGO. This was a claim for damages including a matter of a breach of the DPA and the Equality Act, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that to restrict compensation to actual loss was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that; accordingly, there was a right under the DPA to claim compensation for 'pure' distress.
Blamires also included a four figure claim for discrimination, in terms of the sum sought in compensation for distress and harassment under the EA. The anxiety and distress was compounded by the disability discrimination aspects and failures of the service provider from the outset, and is on all fours with your client's case in this respect.

The award in Blamires was of 'Vidal Hall' compensation and the Judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding knowing that its conduct/data was wrong and discriminatory, it took nearly two years for the Defendant to admit the mistake.
14.6. In this case, it has so far taken the Claimant four years, and counting.
15. The Defendant denies any liability whatsoever to the Claimant in any matter and the court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

STATEMENT OF TRUTH

I believe the facts stated in this Defence are true.

This post has been edited by Phoenixfreespirit: Mon, 15 Oct 2018 - 19:32
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post Mon, 15 Oct 2018 - 19:27
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kommando
post Mon, 15 Oct 2018 - 19:38
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yet they refuse to reply on Schedule 4 of the Protections of Freedom Act 2012.

Should reply read as rely ?
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Phoenixfreespiri...
post Mon, 15 Oct 2018 - 20:26
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Hi Kommando ~ thanks for your reply
QUOTE
yet they refuse to reply on Schedule 4 of the Protections of Freedom Act 2012.

Bwlegal sent a letter in response to an SAR which states
QUOTE
Our client (PremierParkingSolutions) does not intend to reply on Schedule 4 of Protection of Freedom Act 2012

Here is the letter SchoolRunMum drafted for me and their reply

Dear Sirs

You have sent a Letter Of Claim. However, your letter contains insufficient detail of the claim and fails to provide any photographic evidence. It does not even say what the cause of action is. Nor does it contain any mention of what evidence your client intends to rely on, or enclose copies of such evidence.

This action on the part of your client is a clear breach of its pre-action obligations set out in the Practice Direction - Pre-Action Conduct, with which as solicitors you must surely be familiar (and with which your client, a serial litigator of small claims, must also be familiar). As you (and your client) must know, the Practice Direction binds all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.

Nobody, including your client, is immune from the requirements and obligations of the Practice Direction.

I require your client to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
5. a copy of the contract with the landowner under which they assert authority to bring the claim
6. a copy of any alleged contract with the driver
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. If they have added anything on to the original charge, what that represents and how it has been calculated.

I am clearly entitled to this information under paragraphs 6(a) and 6© of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

If your client does not provide me with the above information, then I will ask the court to impose sanctions on your client and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and © and 16 of the Practice Direction, as referred to in paragraph 7.2 of the new Protocol.

Until your client has complied with its obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for your client to issue proceedings in the meantime.


Yours faithfully

This is a copy of their reply

In reference to points raised in your correspondence
1 Our client’s cause of action is that you breached the terms and conditions of the contract which you entered into by parking in the car park, by failing to display a valid Pay & Display Ticket(PDT)or Permit.
2 Our client is pursuing you as the Registered Keeper of the vehicle.
3 Our client does not intend to reply on Schedule 4 of the Protections of Freedom Act 2012.
4 The details of the claim are that your vehicle parked without displaying a valid PDT. The PCN which you have been issued with is for breach of contract. The only right which you have to enter the land in question are on the Terms and Conditions which apply.
5 Please be aware that the contract between Our Client and the landowner is a legally privileged document which you have no right to inspect. However, should this matter progress to court, the contract will be adduced as evidence.
6 The Terms and Conditions stated in the signage at the car park makes it clear that vehicles must display a valid Ticket or Permit. It is necessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.
7 Our client is under no obligation to supply this.
8 As established members of the Independent Parking Community, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks(Code of Practice). This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.
9 £130 remains unpaid for the PCN. Additionally you are also liable for our £60 instructions fee as your file has been passed to us.
Please be advised that in order to use this facility it is your responsibility to abide by the Terms and Conditions. As the vehicle involved in the contravention was pared without displaying a valid Pay and Display Ticket or Permit the Conditions and Terms were broken.
Our Client will not accept a settlement for this Account, therefore the Outstanding Balance remains Due and Owing.

They included copies of the original paperwork and photos. They did not include a copy of the original PCN which I have not seen.
The letter seems to confuse driver and keeper sad.gif
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kommando
post Mon, 15 Oct 2018 - 20:31
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They meant rely not reply so use rely. Spellchecker do not look at context so wrong word right spelling is not picked up.
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SchoolRunMum
post Mon, 15 Oct 2018 - 21:04
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Hello, nice to see you posting here!

A troubling typo needs putting right here because you don't mean diseased, you meant deceased but it makes no sense to put that as - forgive me - she was still alive at the time:

QUOTE
7.1. The passenger in the car (the Defendant’s recently diseased Mother)


So I would just remove 'recently diseased' entirely and just have 'the Defendant's Mother (who has since died)'.


Remove #6 entirely (you already covered this in #5 much more concisely):

QUOTE
6 As is required by Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A) the Claimant has not provided proof of the Claimants contractual authority to operate in the car park in question It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to Premier Parking Solutions. No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice B1.1 which says;
If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner’s behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
6.1. Premier Parking Solutions are not the lawful occupier of the land. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name and that they have no rights to bring a legal action on behalf of any third party who may be entitled to pursue a claim.
6.2. The Claimant is not the landowner and has provided no proof to be an agent acting on behalf of the landowner as they have refused to demonstrate their legal standing to form a contract.
6.3. The Claimant has suffered no loss whatsoever as a result of a vehicle parking at the location in question.
6. 4.There was no provision at the location to buy either a pay and display ticket or permit.
6.5. The Defendant has not seen the original PCN and the Claimant has failed to provide a copy despite having been asked to do so.



Remove this, and only talk about the Equality Act:

QUOTE
7.5. The Defendant believes the Claimant is in breach of article 30 0f the UK ratified United Nations Convention on the Rights of People with Disabilities (CRPD) of 2009. The Convention is the basis for creating inclusionary societies in which people with disabilities enjoy the same rights and freedoms as everyone else, article 30 states –
Participation in cultural life, recreation, leisure and sport
1. States Parties recognize the right of persons with disabilities to take part on an equal basis with others in cultural life, and shall take all appropriate measures to ensure that persons with disabilities:
a) Enjoy access to cultural materials in accessible formats;
b) Enjoy access to television programmes, films, theatre and other cultural activities, in accessible formats;
c) Enjoy access to places for cultural performances or services, such as theatres, museums, cinemas, libraries and tourism services, and, as far as possible, enjoy access to monuments and sites of national cultural importance.



And at the time (2014/15) PPS were in the BPA, not the IPC, and were issuing £130 Notice to Keeper letters in flagrant disregard for the £100 ceiling that the BPA CoP allowed as a maximum. So this is all wrong, don't talk about the IPC CoP:

QUOTE
8.3. The signage did not comply with the requirements of the Code of Practice of the Independent Parking Committee ("IPC") Accredited Operators Scheme, an organization to which the Claimant was a signatory.
8.4. There are no signs at the entrance at all.
8.5. The signs are believed to have no mention of any debt collection additional charge, which cannot form part of any alleged contract.
8.6. As this incident took place in 2014 it is in breach of Terms in Consumer Contracts Regulations 1999.
8.7. Absent the elements of a contract, there can be no breach of contract
8.8. Section B.2.1, B.2.2 of the IPC Code of Practice gives clear instructions as to the placing, visibility and clarity of any signs that are used to form contracts. It says:
8.9. Where the basis of your parking charges is based in the law of contract it will usually be by way of the driver of a vehicle agreeing to contractual terms identified by signage in and around a controlled zone. It is therefore of fundamental importance that the signage meets the minimum standards under The Code as this underpins the validity of any such charge. Similarly, where charges are founded in the law of trespass and form liquidated damages, these too must be communicated to drivers in the same way.
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Phoenixfreespiri...
post Mon, 15 Oct 2018 - 21:11
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Oh okay thanks kommando so they can't even get template letters right!
I am still confused as they seem to address the driver in points 1 and 6 of their letter yet are pursuing me as the keeper.
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Phoenixfreespiri...
post Mon, 15 Oct 2018 - 21:25
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Thank you so much SchoolRunMum smile.gif ~ it is such a relief to find you and have your feedback hello2.gif ~ I was panicking icon_surprised.gif !! I can't thank you enough!
I will edit it as per your instructions, is the rest of it ok ~ do I need to take out or add anything else?
Does point 4 re POFA make sense as I still find this confusing.
Should I also mention the £130 which was the original amount that they were trying for but then reduced to £100 after your brilliant letter?
I hope you can also go back on MSE soon as you have helped so many people and were a godsend for me on there, so can't understand their thinking. huh.gif

This post has been edited by Phoenixfreespirit: Mon, 15 Oct 2018 - 22:12
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SchoolRunMum
post Tue, 16 Oct 2018 - 00:15
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QUOTE
Should I also mention the £130 which was the original amount that they were trying for but then reduced to £100 after your brilliant letter?
Mention it if the claim has put it back at £130. It should not be £130.

QUOTE
I hope you can also go back on MSE soon as you have helped so many people and were a godsend for me on there, so can't understand their thinking.
It was the usual sad stalker having another pop at me. Happens most years now (not a parking firm, there are worse people).

Anyway can you show us what the defence now looks like, properly renumbered please? There are some great contributors here who would be happy to comment on the next draft if you have time.
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nosferatu1001
post Tue, 16 Oct 2018 - 08:33
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Their repsonse is generic, and badly collated
THeyre trying to do this on a shoestring, as they have themselves in a mess - they advertised a uhgely cheap service, but havent worked out how to deal with actual responses.
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emanresu
post Tue, 16 Oct 2018 - 08:35
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I'd check the pic posted on the MSE site before this goes further.
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Churchmouse
post Tue, 16 Oct 2018 - 10:09
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A few tweaks to the defence:

3. The GDPR? The Pre-Action Protocol letter did not mention this at all, so it seems a bit strange to rely on it in your defence. Surely, the more relevant issue is that the PAP was ongoing at the time the claim was filed? It is also not clear how the GDPR failure (?) even affects the Claimant's position in relation to this claim--isn't it a separate issue to be taken up with the ICO?

4. and 4.2. Obviously a typo; "reply on" is not even legalese--its nonsense. Moreover, the question is not whether the PPC has chosen to "rely on" POFA 2012, it is whether they have complied with POFA 2012. It's hard enough for PPCs to comply with the strict provisions of that statute when they're intending to; their compliance with it when not intending to would be entirely impossible.

"4.1. Only the driver of the vehicle on the date in question could have entered into a contract with the Claimant, but the identity of the driver of the vehicle on such date has not been ascertained. The Claimant is put to strict proof."

4.2. "--which the Claimant has admittedly declined to do."

"4.5. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper."
It is not admitted that the "The Claimant has failed to comply complied with the relevant statutory requirements.

--Churchmouse
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emanresu
post Tue, 16 Oct 2018 - 10:27
Post #12


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Whoever parked there missed 3 signs in a short distance. It's a simple defence if the Keeper was not driving and is able to show they were somewhere else at the time (Wales?) as they are not relying on POFA

By all means indulge in ranting here, but it shouldn't leak over into any paperwork that will be seen by a court. It just winds up the judges.
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Phoenixfreespiri...
post Tue, 16 Oct 2018 - 12:15
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Thank you Churchmouse and Emanresu
I can't prove who was driving.
This is a photo of disabled parking spot ~ the reason for parking was that disabled access was needed but I now understand that predatory targeting of disabled people by parking scum is ok and not a defence.
https://www.dropbox.com/s/ezmfk8tuwxp05ez/W...32.04.jpeg?dl=0

Here is the revised draft though it is still probably far too complicated and long,.
I am trying to make sense of and stick to legal points while explaining the circumstances of what for me is an extremely difficult and distressing subject and am obviously failing spectacularly as it seems I will now lose anyway so maybe I should just scrap it and take a ccj as this is all getting too much for me to cope with but will not pay these scum whatever happens.

Defence
In the County Court
Case no
Claimant Premier Parking Solutions
Defendant
1. The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at St. James House, Teignmouth 22/10/2014.
2. The Defendant denies liability for the entirety of the claim for the following reasons.
3. The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol by ignoring a letter that was clearly a Subject Access Request, given the clear request for information and data.
4. The claimant’s template letters are the cause of some confusion as they all address the defendant as the driver, whilst stating that the defendant is being pursued as the keeper; yet they do not rely on Schedule 4 of the Protections of Freedom Act 2012. Therefore ~:
4.1. Only the driver of the vehicle on the date in question could have entered into a contract with the Claimant, but the identity of the driver of the vehicle on such date has not been ascertained. The Claimant is put to strict proof.
4.2. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"), which they have admittedly declined to do.
4.3. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
4.4. There was a relevant obligation either by way of a breach of contract, trespass or other tort; and
4.5. That it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the keeper.
The Claimant has failed to comply with the relevant statutory requirements.
4.6. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.
5 No indication is given as to the Claimants contractual authority to operate in situ, as required by the Claimants Trade Association's Code of Practice B1.1 the material details of this contract are not addressed in the particulars and the claimant has refused to give proof that any such contracts exist when asked for evidence.
7. There are significant issues involving statutory disability rights here, that the ticketing employee certainly knew about on the day. Therefore (to quote the Equality Act 2010, the ''EA'') the Claimant 'knew or should have known' the following facts: the passenger in the vehicle that day was disabled, and that she had 'protected characteristics' as defined under the meaning set out in the EA
7.1. The passenger in the car (the Defendant Mother who has since died) was visibly very disabled. Whoever issued the PCN must have watched her struggle to walk and carry two large bags of books, and that employee (or perhaps a self-ticketer in pursuit of a 'bounty' from PPS) must have then run straight out from hiding, to put a ticket on the car during the time it took to return the books and find new ones.
The passenger, who was also deaf, had only just come out of hospital after breaking her hip falling out of a car, was still undergoing occupational and physiotherapy and was very anxious walking outside and unable to walk unaided. The passenger was classed as disabled despite the defendant not having had time to apply for a blue badge as the vehicle had only just been purchased and the passenger had only just been released from hospital.
7.2. The library where this incident is alleged to have happened, only had a paltry - and woefully inadequate - single disabled parking space, which the defendant understands was full at the time, so the car would have been parked as near as possible due to the Defendant’s Mother's poor mobility and the 24 large print books that needed returning.
7.3. Due to the significant changes in mobility and consequent demands on the whole family because of the number of arrangements necessary to enable both the Defendant’s parent’s to be safely discharged home from hospital; the vehicle was only available to be used to transport the passenger at that time; there was no possibility of returning later.
7.4. The location is the only thoroughfare and point of access for the disabled entrance to the Public Library which it was necessary for the disabled passenger to use on the day in question.
7.6. The alleged charge arose because the defendant’s deaf and disabled mother needed to access the library. The Claimant has been advised of these facts and refused acknowledge their reprehensible conduct.
8 The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.
8.1. The Defendant avers that the parking signage in this matter was, without prejudice to his/her defence, inadequate.
8.2. At the time of the material events the signage was deficient in number, distribution and wording to reasonably convey a contractual obligation;
8.3. Signs must conform to the requirements as set out in a schedule 1 to the Code
8.4. The defendant refutes that there were clear and visible signs, with Terms that formed the basis of a contract and which met the specifications above.
8.5. Such a contract is not applicable to the keeper.
9. Section B.1.1 of the IPC Code of Practice outlines to operators:
9.1. If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the Creditor within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges. There is no prescribed form for such agreement and it need not necessarily be as part of a contract but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question so that charges can be recovered by the operator directly. This applies whether or not you intend to use the keeper liability provisions.
10. No figure for additional charges was 'agreed' nor could it have formed part of the alleged 'contract' because no such indemnity costs were quantified on the signs. Terms cannot be bolted on later with figures plucked out of thin air, as if they were incorporated into the small print when they were not.
10.1. The make up and amount of Claimant’s additional charges change from letter to letter.
10.2. The Defendant believes that the claim has been artificially inflated and that the claimant has added unrecoverable sums to the original charge, including £50 for Legal Representatives costs which is not permitted for the small claims track under CPR 27.14. In any case the Defendant disputes the Claimant has incurred £50 Legal Representatives Costs pursuing an alleged £100 debt.
10.3. The defendant disputes that the claimant has also incurred further supposed additional contractual costs of £60 pursuant to PCN Terms and Conditions.
10.4. The claimant is put on strict proof to evidence the alleged total by means of hourly rate breakdown and receipted invoice for payment.
10.5. Notwithstanding the Defendant's belief, the costs are in any case not recoverable.
11. The Claim Form issued by BW Legal on the 17th September has not been correctly filed as it was not signed by a legal entity. It does not have a valid signature. Practice Direction 22 requires that a statement of case on behalf of a company must be signed by a person holding a senior position and state the position. If the party is legally represented, the legal representative may sign the statement of truth but in his own name and not that of his firm or employer. Its literally just computer printed BW Legal Services Limited (Claimants Legal Representative). There's no signature.
12. The Claimant is believed to be a serial litigant, with over 1,000 similar claims identified by HM Courts Service, which is clearly against the public interest. It is the Defendants belief that this claim is yet another of the Claimants template claims and will proceed with no specific evidence or facts with which to substantiate it which demonstrates a disregard for the dignity of the court and is unfair on unrepresented consumers.
13. The Defendant cannot prepare a full and complete Defence in response to an inadequate, confusing and poorly drafted statement of case from the Claimant. The Defendant reserves the right to add to or amend the Defence should the Claimant (a) advance a different case via his witness evidence and/or (b) serve Amended Particulars of Claim. Any additional court fees or other litigation costs - of and occasioned by the amendment - should be borne by the Claimant.
14. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).
14.1. At the time of this incident, both the Defendant’s parents had just been discharged from hospital with life changing health conditions - and were in and out of hospital - so whilst the Defendant was appalled to receive PPS' demand for an unfair 'parking charge' four years ago; he/she was too overwhelmed by having to take on responsibility for both parents' care and living arrangements to respond to this distressing 'predatory scam' incident at the time.
14.2. Receiving a Letter of Claim four years later, could not have come at a worse time as the Defendant’s Mother has very recently passed away. It is extremely distressing and heartbreaking to have to deal with this now, whilst still mourning her sudden, unexpected death under tragic circumstances.
14.3. This incident and the Claimant’s appalling attitude and contemptible behaviour has caused and continues to cause significant distress and anxiety to the whole family, and the Defendant in particular as the registered keeper of that car on the material date; who has suffered severe panic attacks, lost sleep and exhaustion at a time when also taking on responsibility for all the family affairs following the Defendant’s father’s Dementia diagnosis; and now finding it is not yet over and PPS are suing over their own discriminatory conduct in the hope of profiting from it.
14.4. Under CPR Rule 27.14(2)(g): ''costs can be awarded where a party behaves unreasonably''.
Further, under paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''
14.5. The Defendant would like to draw attention to a landmark 2017 judgment at the Leeds County Court, 3SP00071 - Blamires v LGO. This was a claim for damages including a matter of a breach of the DPA and the Equality Act, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that to restrict compensation to actual loss was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that; accordingly, there was a right under the DPA to claim compensation for 'pure' distress.
Blamires also included a four figure claim for discrimination, in terms of the sum sought in compensation for distress and harassment under the EA. The anxiety and distress was compounded by the disability discrimination aspects and failures of the service provider from the outset, and is on all fours with your client's case in this respect.
The award in Blamires was of 'Vidal Hall' compensation and the Judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding knowing that its conduct/data was wrong and discriminatory, it took nearly two years for the Defendant to admit the mistake.
14.6. In this case, it has so far taken the Claimant four years, and counting.
15. The Defendant denies any liability whatsoever to the Claimant in any matter and the court is invited to strike out the claim of its own volition as having no merit and no reasonable prospects of success.

STATEMENT OF TRUTH

I believe the facts stated in this Defence are true.

This post has been edited by Phoenixfreespirit: Tue, 16 Oct 2018 - 12:27
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nosferatu1001
post Tue, 16 Oct 2018 - 12:23
Post #14


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Simple question: do you know who drove? Yes or no
Not what you can prove. What you know.
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henrik777
post Tue, 16 Oct 2018 - 12:26
Post #15


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Posts: 1,825
Joined: 16 Nov 2008
Member No.: 24,123



QUOTE
1 Our client’s cause of action is that you breached the terms and conditions of the contract which you entered into by parking in the car park, by failing to display a valid Pay & Display Ticket(PDT)or Permit.
2 Our client is pursuing you as the Registered Keeper of the vehicle.


In 1 they say you're driving but in 2 they're not after the driver huh.gif


QUOTE
3 Our client does not intend to reply on Schedule 4 of the Protections of Freedom Act 2012.


So what are they relying on ?



QUOTE
5 Please be aware that the contract between Our Client and the landowner is a legally privileged document which you have no right to inspect. However, should this matter progress to court, the contract will be adduced as evidence.


"Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice. Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated."

AKA, we think you're thick so we're going to talk carp.

If you're willing to disclose in court then you're not asserting legal privilege you're stalling for time trying to gain an unfair advantage.

QUOTE
6 The Terms and Conditions stated in the signage at the car park makes it clear that vehicles must display a valid Ticket or Permit. It is necessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with Our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance.


So check what's on the entrance sign. If parking is acceptance then the fuller information signs are worthless, as you need to park to read them. (Thornton v Shoe lace). Utter garbage they're spouting.




QUOTE
7 Our client is under no obligation to supply this.


Do they understand the cards on the table approach of CPR ? Save that up for unreasonable behaviour.


QUOTE
8 As established members of the Independent Parking Community, Our Client adheres to their Code of Practice for Private Enforcement on Private Land and Unregulated Car Parks(Code of Practice). This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park comply with the recommendations in the Code of Practice and are therefore deemed reasonable.


Utterly wrong.

https://theipc.info/aos-members/p

Premier Parking Solutions Ltd
Accreditation Start Date:
01/03/2016



QUOTE
9 £130 remains unpaid for the PCN. Additionally you are also liable for our £60 instructions fee as your file has been passed to us.
Please be advised that in order to use this facility it is your responsibility to abide by the Terms and Conditions. As the vehicle involved in the contravention was pared without displaying a valid Pay and Display Ticket or Permit the Conditions and Terms were broken.
Our Client will not accept a settlement for this Account, therefore the Outstanding Balance remains Due and Owing.


Did the sign say extra charges ?



I'd be seeking some clarifications.

This post has been edited by henrik777: Tue, 16 Oct 2018 - 12:27
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Phoenixfreespiri...
post Tue, 16 Oct 2018 - 13:57
Post #16


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Thank you Nosferatu1001
QUOTE
Simple question: do you know who drove? Yes or no

Yes
Thank you Henrik777
QUOTE
In 1 they say you're driving but in 2 they're not after the driver huh.gif

one of the many points I am confused on
QUOTE
So what are they relying on ?

I don't know
QUOTE
AKA, we think you're thick so we're going to talk carp.

If you're willing to disclose in court then you're not asserting legal privilege you're stalling for time trying to gain an unfair advantage.

Hence point 13 in my Defence draft?
QUOTE
So check what's on the entrance sign. If parking is acceptance then the fuller information signs are worthless, as you need to park to read them. (Thornton v Shoe lace). Utter garbage they're spouting.

This is a close up of the sign at the entrance.
https://www.google.co.uk/maps/@50.5473944,-...3312!8i6656
There is no PremierParkingSolutions sign at the entrance.
QUOTE
Do they understand the cards on the table approach of CPR ? Save that up for unreasonable behaviour.

Will do
QUOTE
Utterly wrong.

https://theipc.info/aos-members/p

Premier Parking Solutions Ltd
Accreditation Start Date:
01/03/2016

As this took place in 2014 I am not sure who they need to comply with and whether that makes points in my defence (posted earlier) wrong?
QUOTE
Did the sign say extra charges ?

This is a photo of one of their signs which I understand is attached to the residential building but not obvious.
https://www.dropbox.com/s/xkvo1lo16o4hnhr/I...143455.jpg?dl=0
This is a photo of car parked by a sign which I understand unfortunately may make signage points difficult to argue but due to the circumstances involved was also not seen by the driver at the time
https://www.dropbox.com/s/rlzoqbfbllb0tn6/I...143522.jpg?dl=0
QUOTE
I'd be seeking some clarifications

The claim was issued while I was corresponding with them asking for further clarification and a copy of the original PCN which I still have not seen; although they had reduced the £130 to £100 thanks to a brilliant letter by SchoolRunMum but it is my understanding they were still in breach of PreActionProtocol in issuing the claim.

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henrik777
post Tue, 16 Oct 2018 - 14:20
Post #17


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Write to them asking for clarification.

Driver or keeper ?

What are you relying on if not POFA ?

Why are asserting privilege but saying you'll disclose, eventually ?

You say parking is acceptance and thus you claim any contract was concluded at this point without a chance to read any other signs apart from the entrance signs. Is that there position ?

Remind the CPR asks for a cards on the table approach

Why does your letter mention TheIPC when the alleged incident predates their membership ?

Why are they claiming extra charges not mentioned on any signs ?

This post has been edited by henrik777: Tue, 16 Oct 2018 - 14:26
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nosferatu1001
post Tue, 16 Oct 2018 - 14:49
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Indeed, the point was that this is 2014 yet they joined the ipc in 2016, so their statement they are long standing members is irrelephant

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Phoenixfreespiri...
post Tue, 16 Oct 2018 - 15:31
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QUOTE
write asking them for clarification

That is what I was doing when they issued the claim ohmy.gif
correspondence so far ~ letter kindly drafted by SchoolRunMum ~
Dear BW Legal,

Re - your Letter of Claim re PCN .....

This is a formal response to your 'Letter of Claim' and your latest letter, which is a well-known template that makes no attempt to narrow the issues, inform me of any facts, nor to resolve the dispute.

You appear to be negligently or deliberately trying to mislead consumers in your race to court. Firstly, kindly explain how your clients can be 'established members of the Independent Parking Community' when:

(a) there is no such organisation, and

(b) at the material time, I have discovered that PPS were BPA members, so you have made no effort to point me towards the correct Code of Practice (with set grace periods, etc.) that applied on the date in question.

Secondly, it appears you are also attempting to mislead the court, and the sum demanded is an abuse of process. At #9, you say:

''£130 remains unpaid for the PCN. Additionally you are also liable for our £60 instructions fee as your file has been passed to us.''

With respect, that appears to be absolute rubbish. The PCN sum cannot have been £130, since the BPA had long since imposed a £100 maximum ceiling (which I now understand that PPS routinely and flagrantly breached in 2014/15). Also, under the POFA, the maximum sum an ATA member can seek from a registered keeper is the sum on the Notice to Keeper. Further, there is no cost for any 'debt collection letters' stage, which is offered by such firms completely free, since they advertise and operate for parking firms on a no-win-no-fee basis.

I require you to now show your evidence of such costs - i.e. written proof that your client has already actually paid £30 to a debt collection firm, and £60 to your firm as an 'instructions fee'. Further, proof is required that such additions were prominently displayed on the signs in large lettering, which certainly cannot be concluded from the vague photos provided.

I remind you of the overriding objective at this stage, to stock-take and review our respective positions, following the Practice Direction by exchanging information to see if proceedings can be avoided and to - at least - narrow the issues.

There are significant issues involving statutory disability rights here, that the ticketing employee certainly knew about on the day. Therefore (to quote the Equality Act 2010, the ''EA'') your client 'knew or should have known' the following facts:

A passenger in the car (my late Mother) was visibly very disabled. Whoever it was in the flats adjacent to the Library who had nothing better to do than to watch the struggle with her walking and carrying two large bags of books, and whose only thought was to phone PPS to rush round and issue the PCN should be ashamed of themselves; as should the employee (or perhaps a self-ticketer in pursuit of a 'bounty' from PPS) who must have driven immediately to put a ticket on the car during the short time it took to return the books. A PPS van can clearly be seen in the photographic evidence.

My late Mother had just been discharged from Hospital and she was unable to walk unaided following a fall and breaking her hip while visiting my father who was on the critical list in hospital. She was also deaf, so reading was her only entertainment as she couldn't manage television. The library where this incident is alleged to have happened, only had a paltry - and woefully inadequate - single disabled parking space, which I understand was occupied, so the car would have been parked as near as possible due to my Mother's poor mobility and the 24 large print books that needed returning.

My Father was shortly after this incident, diagnosed with dementia - and both parents were in and out of hospital - so whilst I was appalled to receive PPS' demand for an unfair 'parking charge' four years ago, I was too overwhelmed by having to take on responsibility for both my parents' care and living arrangements to respond to this distressing 'predatory scam' incident at the time.

Receiving this Letter of Claim now nearly four years later, could not have come at a worse time as my Mother has very recently passed away. It is extremely distressing and heartbreaking to have to deal with this now, as I am still mourning my Mother's death.

How dare your client attempt to penalise a disabled passenger? I require you to ask your client to thoroughly investigate the incident and scrutinise any notes taken, and explain whether this was a rogue employee or a self-ticketer. In the event of a hearing, your client must be informed that the person who actually ticketed the car will be expected to appear as a witness, to explain their predatory actions.

This incident has caused significant distress and anxiety to the whole family, and me in particular as the registered keeper of that car on the material date. I have suffered panic attacks and lost sleep over it, at a time when I wanted to be there for my family, and now I find it is not yet over and PPS are intending to sue over their own discriminatory conduct in the hope of profiting from it.

I would like to draw your attention to a landmark 2017 judgment at the Leeds County Court, 3SP00071 - Blamires v LGO. This was a claim for damages including a matter of a breach of the DPA and the Equality Act, for which an award of £2,500 was granted as compensation for distress. As is now relatively well known, in Vidal Hall & ors v Google [2015] EWCA Civ 311, it was held that to restrict compensation to actual loss was contrary to the provisions of the Charter of Fundamental Rights of the European Union and that, accordingly, there was a right under the DPA to claim compensation for 'pure' distress.

Blamires also included a four figure claim for discrimination, in terms of the sum sought in compensation for distress and harassment under the EA. The anxiety and distress was compounded by the disability discrimination aspects and failures of the service provider from the outset, and is on all fours with your client's case in this respect.

The award in Blamires was of 'Vidal Hall' compensation and the Judge awarded a further £2,500 aggravated damages because of the manner in which the Defendant conducted its case, including the fact that, notwithstanding knowing that its conduct/data was wrong and discriminatory, it took nearly two years for the Defendant to admit the mistake.

In this case, it has so far taken your client four years, and counting.

I expect your client to now cancel this 'parking charge' and admit its mistake in allowing a rogue ticketer to watch my Mother struggle, then immediately issue within minutes, a predatory notice against a driver who was taking a clearly very disabled passenger to the library. Operating to the detriment of disabled patrons by penalising vulnerable people like my family, when the paltry disabled/exempt bay was already taken, is discriminatory in itself, when the ticketer/accomplice could see my Mother's mobility issues.

Given the fact that she could not walk unaided, her mobility issue was unmistakable and obvious, especially given the mere minutes of so-called 'observation' shown on the PCN. My Mother's slow-moving struggle must have been seen, on the balance of probabilities.

Do not patronise me with a reply talking about a 'Blue Badge', which you and I both know is a Council only scheme, and not the only indicator of disability when it comes to making 'reasonable adjustments' for someone who very clearly meets the legal definition and has 'protected characteristics'. As my Mother was only just out of hospital she had no Blue Badge at that time but that does not in any way detract from her rights under the EA.

Notwithstanding the disability discrimination aspects, your client was also duty bound to observe the BPA CoP 'grace period' rules at the time and it appears that they have also failed in that regard.

I must remind you that under CPR Rule 27.14(2)(g):

''costs can be awarded where a party behaves unreasonably''.

Further, I refer your client to paragraph 16 of the Practice Direction – Pre-Action Conduct:
''a party who has not complied with its pre-action obligations can be ordered to pay costs (even if the party has succeeded in its claim/defence) and there is also a power to remit/increase interest.''

I expect to hear from you within 14 days to confirm that the charge is cancelled, or at the very least that your client is urgently reviewing the matter and their employee's failure to make a reasonable adjustment for a disabled patron of the library. As stated, if they proceed with a claim I will require the ticketing employee (or self ticketer) to attend the hearing in person to explain their actions that day, since disability discrimination carries both a corporate and personal liability.

Finally, I will also submit that, even if your client protests that their employee/self ticketer had no idea about my mother's mobility problems, and did not watch her struggle before issuing a PCN, this is in fact irrelevant. The indisputable fact now is that, regardless of any previous excuse, your clients and you have hereby been informed by this letter, that

(a) a passenger in the vehicle that day was disabled, and that she had 'protected characteristics' as defined under the meaning set out in the EA, and

(b) their conduct has caused and continues to cause, four years later, significant distress, as a matter of fact, that I intend to demonstrate in person and with evidence, including hospital and GP records, in my witness statement and at any hearing.

Your client now has the opportunity to right the wrong, and cancel the charge.

Should they fail to cancel the charge, PPS - and the person making the decision to proceed with a claim, whose name must appear on your letter of reply, along with their reasons for disregarding the EA - will be held corporately and personally liable for a failure to make a 'reasonable adjustment' for a disabled person.

As a service provider, PPS is liable for a breach of their statutory duties under the EA and they should take notice that I intend to file a counter-claim for compensation, in a sum not less than £500 plus costs on the indemnity basis, if this matter now proceeds to litigation.

yours faithfully,

QUOTE
bwlegal reply

https://www.dropbox.com/s/15ce0kxyixuiuur/I...171427.jpg?dl=0
https://www.dropbox.com/s/gwoof5w2hdo3uhi/I...160629.jpg?dl=0

They then almost immediately issued the claim before receiving this letter also drafted by the wonderful SchoolRunMum
Dear BW Legal,

You have sent me another template letter, and have not explored the Equality Act 2010 at all in your reply.

Kindly explain:

- how 10 minutes 32 seconds was recorded, and on exactly what device?

- how 10 minutes 32 seconds is long enough for a disabled person with extremely limited mobility, to even obtain a permit from adjacent premises and where they could have obtained one from in those minutes?

- how the £130 has suddenly become £100?

- show me both the PCN and NTK that had either £130 or £100 on them, and if it is the former, PPS will need to also supply the BPA's authorisation they must have obtained, to 'charge' more than the allowed ceiling.

- show me the notes taken by the person issuing the ticket, and confirm whether this was self-ticketing and if so, evidence that the lurking chancer was actually trained in the BPA Code of Practice, the Equality Act, the DPA and the KADOE rules, since your client remains liable for the actions of self-ticketers.

- answer (properly) the issue about indirect discrimination and predatory ticketing.

Further, kindly stop calling this scam an 'account'. I have no account with your client and they and firms of their ilk have no consumer 'customers', so stop using your template terminology, clearly designed to fool the court into actually thinking for one minute that this is some sort of debt.

Be advised I am copying this letter and all correspondence to:

(a) my MP
(b) the local newspaper
© the EHRC, regarding the predatory disability discrimination
(d) the library and site owner

You must consider this letter a Subject Access Request for your client's Data Protection Officer to reply to with the required data, within 30 days.

yours faithfully,


QUOTE
this was their response after having issued the claim


https://www.dropbox.com/s/7iiwbovz8l54zuj/I...142757.jpg?dl=0

I gather from their last response that they will not answer any further correspondence and I have no intention of phoning them as they 'so kindly' advise.

This post has been edited by Phoenixfreespirit: Tue, 16 Oct 2018 - 16:59
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nosferatu1001
post Tue, 16 Oct 2018 - 15:33
Post #20


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Group: Members
Posts: 28,687
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THe court expects them to continue communicating.
All the way to the day of the hearing
As long as you ask reasonable questions it cannot go against you. Their failure or refusla to respond goes in your defence and WS, and makes them look at best foolish, at worst obstructive.
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